Mitchell v. Schenker, Inc.
Filing
16
ORDER DENYING 13 Motion to Remand. Signed by Judge Nancy J. Rosenstengel on 10/18/2017. (jkb2)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH MITCHELL,
Plaintiff,
vs.
SCHENKER, INC.,
Defendant.
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Case No. 3:17-CV-00655-NJR-DGW
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Joseph Mitchell’s Motion to Remand (Doc. 13) is pending before the
Court. Mitchell originally filed suit in the Circuit Court of Madison County, Illinois,
alleging retaliation by his employer Defendant Schenker, Inc., for his filing of a workers’
compensation claim. (Doc. 13, p. 1; Doc. 13-1). Schenker removed the case to federal
court on June 23, 2017, alleging jurisdiction under the diversity of citizenship provision
of 28 U.S.C. § 1332. (Doc. 15, p. 1). Mitchell timely filed a Motion to Remand. (Doc. 13).
For the reasons set forth below, Mitchell’s Motion to Remand to Illinois state court is
denied.
LEGAL STANDARD
Removal is governed by 28 U.S.C. § 1441, which provides, in pertinent part, that
“any civil action brought in a State court of which the district courts of the United States
have original jurisdiction, may be removed by the defendant or the defendants, to the
district court of the United States for the district and division embracing the place where
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such action is pending.” 28 U.S.C. § 1441(a); see also Potter v. Janus Inv. Fund, 483
F.Supp.2d 692, 694-95 (S.D. Ill. 2007). The party invoking federal jurisdiction has the
burden of proving subject matter jurisdiction exists. Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992); Brill v. Countrywide Home Loans, 427 F.3d 446, 447 (7th Cir. 2005). There is
a strong presumption in favor of remand, and courts construe the removal statute
narrowly. Doe v. Allied–Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993) (citing Illinois v.
Kerr-McGee Chemical Corp., 677 F.2d 571, 576 (7th Cir. 1982)). Any doubts concerning
removal must be resolved in favor of remand to the state court. Alsup v. 3-Day Blinds,
Inc., 435 F.Supp.2d 838, 841 (S.D. Ill. 2006) (citing McCoy v. General Motors Corp., 226
F.Supp.2d 939, 943 (N.D. Ill. 2002)).
Under 28 U.S.C. § 1332, a federal district court has original subject matter
jurisdiction over actions involving complete diversity between the parties when the
amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C.
§ 1332(a)(1); LM Ins. Corp. v. Spaulding Enters., Inc., 533 F.3d 542, 547 (7th Cir. 2008).
Complete diversity exists where none of the parties on either side of the litigation are
citizens of the same state as the parties on the other side. Caterpillar Inc. v. Lewis, 519 U.S.
61, 68 (1996); Howell v. Tribune Entertainment Co., 106 F.3d 215, 217 (7th Cir. 1997).
Here, the physical diversity of the parties does not appear to be contested. 1
Mitchell is domiciled in the state of Missouri, and Schenker is a company both
incorporated, and with its principal place of business, in the State of New York. (Doc. 15,
p. 3, n. 1). Thus, the only issue before the Court is whether the amount in controversy
1
Mitchell does not specifically address this issue in the Motion to Remand or supporting memorandum of
law. The Court notes, however, that the only argument Mitchell makes regarding § 1332 jurisdiction
relates to the amount in controversy. Thus, the Court infers that Mitchell admits physical diversity exists.
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exceeds the jurisdictional requirement of $75,000, exclusive of interest and costs.
ANALYSIS
The amount in controversy is determined as of the date the suit was removed to
federal court. Oshana v. Coca-Cola Co., 472 F.3d 506, 510-11 (7th Cir. 2006). If contested, the
proponent of federal jurisdiction has the burden of proving the amount in controversy
by a preponderance of the evidence. Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536,
542-43 (7th Cir. 2006); Oshana, 472 F.3d at 511. The removing party is entitled to present
its own estimate of the amount at issue and is not bound by the plaintiff’s estimates. Back
Doctors Ltd. v. Metropolitan Property and Cas. Ins. Co., 637 F.3d 827, 830 (7th Cir. 2011);
Oshana, 472 F.3d at 510-11. The ultimate amount of damages the plaintiff will recover
need not be determined, only how much is at stake in the controversy. Brill, 427 F.3d at
449. Further, an estimate of the stakes presented by the proponent of federal jurisdiction
controls “unless recovery of an amount exceeding the jurisdictional minimum is legally
impossible.”2 Back Doctors, 637 F.3d at 830.
Proof of damages can be difficult to show where a plaintiff does not want to be in
federal court (and thus produces little evidence regarding the value of his claims).
Oshana, 472 F.3d at 511. For that reason, courts have found a good-faith estimate of the
stakes is acceptable, as long as it is plausible and supported by a preponderance of the
2
Contrary to Seventh Circuit precedent, Mitchell argues that a plaintiff’s evaluation of the stakes is
dispositive when determining whether the jurisdictional threshold is met for diversity. (Doc. 14, p. 3). The
only case cited by Mitchell for this proposition is Amaro v. BJC Healthcare, Case No. 08-cv-590-DRH, 2009
U.S. Dist. LEXIS 45 (S.D. Ill. Jan. 5, 2009). The Court notes the statement Mitchell relies on from Amaro is
pulled from Barbers, Hairstyling for Men & Women, Inc. v. Bishop, 132 F.3d 1203, 1205 (7th Cir. 1997). Upon
review of Barbers, it becomes clear the “plaintiff” the Seventh Circuit was referring to in that case was the
federal plaintiff (the case did not involve removal from state court)—not the plaintiff in an original state
court action. Id. Thus, the Seventh Circuit was stating that the party claiming jurisdiction (in that case the
federal plaintiff) was to “receive the benefit of the doubt when determining the amount in controversy.”
Id. at 1205. The court’s language cannot be interpreted to stand for a general statement that a plaintiff in an
underlying state court case is given deference regarding the amount in controversy.
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evidence. Id. The Seventh Circuit has recognized multiple ways in which a good faith
assessment of the amount in controversy can be determined, including: through
calculations of the potential damages based on facts and theories of recovery alleged in
the complaint, Meridian, 441 F.3d at 541; and estimates based on case law in which the
plaintiff had suffered similar injuries and was awarded pain and suffering damages in
amounts that satisfy the jurisdictional requirements, McMillian v. Sheraton Chi. Hotel &
Towers, 567 F.3d 839, 845 (7th Cir. 2009).
Here, Schenker argues the amount in controversy exceeds $75,000, exclusive of
interest and costs, based on Mitchell’s requests for back pay, front pay, compensation for
loss of benefits, emotional distress, and punitive damages.3 (Doc. 15, p. 6). Conversely,
Mitchell argues the amount in controversy does not exceed the threshold requirement,
as evidenced by his request for “damages less than $75,000” in the original complaint
(Doc. 13, p. 1, citing Doc. 14-2, p. 5), and the post-removal affidavit filed by counsel
stating that “[b]ased on the nature and extent of Plaintiff’s injuries and his special
damages, Plaintiff’s claims for damages do not exceed $75,000” (Doc. 14-1, p. 1).
Mitchell’s claim for back and front pay alone appears to exceed the threshold
amount in controversy requirement. According to Schenker, Mitchell earned
approximately $1,169 bi-weekly, or the equivalent of $30,394 per year. (Doc. 15, p. 6).
Assuming Mitchell’s last day of employment was June 23, 2015 (Doc. 15, p. 6), by the
3
Under Illinois law, a wrongfully discharged employee is entitled to damages for lost back pay, front
pay,3 and recovery for emotional distress due to the retaliatory discharge. See Slane v. Mariah Boats, Inc.,
164 F.3d 1065 (7th Cir. 1999) (upholding damages for back pay and benefits, compensatory and punitive
damages under Illinois law); Peeler v. Village of Kingston Mines, 862 F.2d 135, 137 (7th Cir. 1988) (finding
damages for emotional distress available under Illinois law).
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time he filed his claim on May 16, 2017, almost three years had passed.4 (See Doc. 1,
“Notice of Removal”). Thus, it is reasonable to assume that Mitchell is alleging at least
$90,000 in back and front pay damages alone, 5 which exceeds the jurisdictional
requirement.
Mitchell’s request for punitive damages and allegations of emotional distress
further increase the amount in controversy. (Doc. 13-1, p. 4). Punitive damages for
retaliatory discharge under the Workers’ Compensation Act is well recognized by
Illinois courts. Holland v. Schwan’s Home Service, Inc., 992 N.E.2d 43, 89 (Ill. App. Ct. 2013);
Paz v. Commonwealth Edison, 732 N.E.2d 696, 706 (Ill. App. Ct. 2000). In addition, a
plaintiff can claim emotional damages in Illinois workers’ compensation retaliation
cases. Reinneck v. Taco Bell corp., 297 Ill.App.3d 211, 218 (Ill. App. Ct. 1998) (upholding
$25,000 award for emotional distress in workers’ compensation retaliatory discharge
case); Peeler v. Village of Kingston Mines, 862 F.2d 135, 139 (7th Cir. 1988) (upholding
$50,000 award for mental anguish in workers’ compensation retaliatory discharge case).
While punitive and emotional damage awards will vary based on the facts of a case,
awards of punitive damages up to three times the amount of compensatory damages has
been held to be reasonable. Heldenbrand v. Roadmaster Corp., 660 N.E.2d 1354, 1361-62 (Ill.
4
The claim was removed to federal court approximately five weeks after it was filed in state court, on
June 23, 2017 (Doc. 1), which was a full three years after Mitchell’s discharge. Although not specifically
addressed by the parties, the Court notes in Mitchell’s Complaint he alleges he continues to suffer a loss of
salary, benefits, and experience. (Doc. 14-2, p. 4). The Court interprets that language to mean Mitchell
remained unemployed at the time of filing.
5
Schenker calculates the actual damages using an additional amount of time the company estimates it
would take the federal litigation to be resolved. (Doc. 15, p. 6). This results in a calculation of damages for
just less than five years of unemployment, or lost wages of $149,438.00. (Doc. 15, p. 6). Because Mitchell
has already incurred damages in an amount exceeding the jurisdictional requirement of amount in
controversy, the Court does not find it necessary to determine whether the removing party can infer
damages based on the estimated length of litigation.
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App. Ct. 1996). Given the combination of three years of actual damages and the potential
for significant punitive and emotional distress awards, Schenker’s claim the amount in
controversy exceeds $75,000, exclusive of interest and costs, is supported by a
preponderance of the evidence.
Mitchell’s evidence is insufficient to show with legal certainty that recovery will
be less than the jurisdictional amount. The prayer for damages of “less than $75,000”
does not, in fact, limit damages under Illinois law. 735 Ill Comp. Stat. 5/2-604; BEM I,
LLC. V. Anthorpologie, Inc., 301 F.3d 548, 552 (7th Cir. 2002) (Illinois rules do not limit
damages to the amount asked for in the complaint). Had Mitchell been serious in his
intent to limit the damage amount in state court, Illinois law allows for filing of a binding
stipulation. Oshana, 472 F.3d at 511-12 (citing BEM I, 301 F.3d at 552). The fact that no
such binding stipulation of damages was filed means no legal certainty exists that
damages cannot exceed the jurisdictional amount. Further, because jurisdiction is
determined at the time of removal, a post-removal disclaimer limiting damages cannot
be used to defeat jurisdiction. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283,
292 (1938); Back Doctors Ltd. v. Metro. Prop. & Cas. Ins. Co., 637 F.3d 827, 830 (7th Cir. 2011).
The affidavit by Mitchell’s counsel, therefore, is ineffective to prove damages cannot
exceed $75,000. Because none of the evidence presented by Mitchell provides legal
certainty the amount in controversy cannot exceed $75,000, exclusive of interest and
costs, Schenker’s estimate of damages controls.
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CONCLUSION
Because the parties do not contest diversity of citizenship, and Schenker has
established the amount in controversy exceeds $75,000, exclusive of interest and costs,
the Court finds diversity jurisdiction is proper and DENIES Mitchell’s Motion to
Remand (Doc. 13).
IT IS SO ORDERED.
DATED: October 18, 2017
___________________________
NANCY J. ROSENSTENGEL
United States District Judge
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